Holding

The Supreme Court held that the State did not act in mala fides, no suppression of facts occurred, and the High Court order was set aside as infructuous.

Summary

The State of Maharashtra appealed against a Bombay High Court Single Judge's ex‑parte order that stayed a trial judge’s permission for Dr. Budhikot Subharao to travel abroad and awarded him Rs.25,000 compensation, alleging that the State had acted in mala fides and engaged in sharp practice. The Supreme Court examined whether the State’s writ petition under Article 227 of the Constitution and Section 482 of the Criminal Procedure Code was filed on false facts or with an improper motive. It held that the State disclosed correct facts, that filing a petition to challenge an order is a legitimate exercise of legal rights, and that there was no evidence of suppression of facts or dishonest conduct by the public prosecutor. Consequently, the Court found no mala fides or sharp practice and set aside the High Court order as infructuous. The appeal was allowed, the order dated 28‑10‑91 was dismissed, and the public prosecutor’s intervention was permitted.

Issues considered

Whether the State acted in mala fides in filing the writ petition under Article 227 and Section 482 of the CrPC.
Whether the High Court Single Judge’s order was obtained by suppression of facts or false statements (sharp practice).
Whether the public prosecutor’s conduct amounted to professional misconduct or dishonesty.
Whether the compensation award to the respondent could be sustained.

Legislation cited

Subjects

mala fidessharp practiceSection 482 CrPCwrit petitionprofessional ethicspublic prosecutorcompensationex‑parte orderappeal

Judgment

A STATE OF MAHARASHTRA
v.
DR. BUDHIKOTA SUBHARAO

MARCH 16, 1993

B [S. RATNAVEL PANDIAN AND R.M. SAHA!, JJ.]

Code of Criminal Procedure 1973:

C
Section 482. Court proceedings-Mala fides-May be legal or fac-
tuaf---Procuring order on incorrect facts-Reprehensibl.,_practice and proce-
dure.
-
High Court-Judge may have unchallenged and unfettered power to
direct office to list case before him-Judicial discipline restricts excercise of
this power.
D Judgments-Stn1ctures of 'sharp practices' suppression of facts, obtain-
jng orders by playing fraud-{Jse of

The respondent, an ex-Naval Officer and Computer Science
Graduate was accused of leaking Atomic Energy Secr,,ts_and~iolati11g the
E provisions of the Atomic Energy Act, 1962. He filed an. application for
quashing the charge sheet framed under the Official Secrets Act, 1923 and
the Atomic Energy Act, 1962 and for release of his passport before the
Division Bench of the High Court which passed an order on 13.2.1991 that

F
it may be presented before the trial Judge. On the very next day the
Additional Sessions Judge after hearing the parties directed that the
passport and identity card or the respondent be returned, and he per-
-
mitted the respondent to leave India and travel abroad as per his itinerary
during the period from 17.2.1991 to 22.2.1991 on executing a personal .
bond or Rs.50,000.

The appellant - State was disturbed by this order as serious charges
G
had been levelled against the respondent who had been arrested, earlier,
jnst when he was about to leave the country and board the plane, for
leakage of official secrets and whose bail had even, been cancelled by this
Court; appeared to be in danger or leaving the country again.

-H Since the order was passed on 14.2.91 and the respondent was to fly
JM
STATE v. DR. BUDHJKOTA 301

on 17.2.91 and 16.2.91 was a Saturday, the State Challenged the correct- A
ness of the order passed by the Additional Sessi9ns Judge by way of a writ
petition under Article 227 of the Constitution read with section 482 of
Criminal Procedure Code and a Single Judge, who under the rules was
entitled to hear such a petition, passed an ex-parte order on 15.2~91
staying that part of the order which permitted the respondent to leave the
country and directed the application to be listed for further orders on
B
18.2.91.

The Respondent on coming to know of this order, in the evening,
approached the Division Bench of the High Court where the·maln petKiu

- was pending on 16.2.1991, which after making an observation that the
Public prosecutor ought to have brought it to the notice o'f the Sin;le
Judge that the main matter was pending before the Division Bench IUld
the trial Judge had passed the order in pursuance of the direction issued
C

by the Division Bench, directed that the matter, being urgent, it should be
placed before the same single Judge.
D
Consequent thereto the parties appeared before the Judge on
16.2.1991 who after hearing them confirmed the interim order.

When the revision petition filed by the State directed against the
order acquitting the respondent accused, was taken up for hearing and
observations were made, during course of judgment dictated in open court
E
from 5th to 12th October, 1991 against the public prosecutor and the
State, the respondent appears to have made a mention on 10th October
that the writ petition filed by the State against the order of the trial judge

- releasing his passport and permitting him to travel abroad may be sum-
moned and disposed of. This requesfwas accepted and on direction or the F
Judge the office listed the case beforelliim on Uth October, and when the
petition was taken up, on 11th Octcll\er, and the public prosecutor was
asked if she had any objection to hearing it was stated by her that it did
not survive.

The Judge after completion of judgment in criminal revision on 12th G
October, took up the writ petition. The Single Judge passed the order
which is the subject matter or the appeal and directed the payment of
-.Y"-- Rs.25,000 compensation for consultancy loss, suffered by the respondent
due to the ex-parte order obtained by the State against the order of th•
trial judge permitting the respondent to go abroad. H
302 SUPREME COURT REPORTS [1993] 2 S.C.R.

A The State appealed to this Court questioning the validity of the
order of the Single Judge dated 28.10.91. ·-{-

Allo\\ing the State's appeal and the intervention application of the
Public prosecutor and setting aside the order dated 28.10.91 passed in the
Civil Miscellaneous Writ Petition and dismissing the same as infurctuous
B this Court.

HELD : 1. Disclosing correct facts and then obtaining order in
favour is not same as procuring an order on incorrect facts. Former is
legitimate being part of advocacy latter is reprehensible and against
profession. [307D]
c
2. Mala fides violating the proceedings may be legal of factual.
Former arises as a matter of law where a public functionary acts
deliberately i~ defiance of law without any malicious intention or im- +
proper motive whereas the latter is actuated by extraneous considerations.
D But neither can be assumed or readily inferred. It requires strong
evidence and unimpeachable proof. [308C)

In the instant case, neither the order passed by the Single Judge
granting ex-parte order of stay preventing opposite party from going
abroad was against provisions of law nor was the State guilty of acting
E ma/a fides in approaching the Single Judge by way or writ petition. The
order of the trial Judge could not be challenged before the Division Bench, y-
onder the rules of the court, the correctness of, the order could be assailed
only in the manner it was done by the State. [308D]

3. Any party aggrieved by an order is entitled to challenge it in a court
F of law. Such action is neither express malice nor malice in law. [308E]

4. Sharp practice is not a court language. It is sorry to say so. Facts
did not justify it. Legal propriety does not countenance use of such
expressions favourably. The Judge in the instant case, used very harsh
G language \\ihout there being any occasion for it. [309C]

5. A State counsel with all the aura of office suffers dual handicap
of being looked upon by the other side as the necessary devil and the
·courts too at times, find it easier to frown upon him. The moral respon-
sibility of a state counsel, to place the facts correctly, honestly and fairly
H before the court, having access to State records, collpled with his duty to
+·

STATE v. DR. BUDHIKOTA [SAHA!, J.] 303

~·· secure an order in favour of his client requires him to discharge his duty A
responsibly and sensibly. Even so if a State lawyer who owes a special duty
and is charge with higher standard of conduct in his zeal or due to
pressure, not uncommon in the present day, adopts a partisan appr.oach
that by itself is not sufficient to warrant a finding of unfairness or
resorting to sharp practice. [309D-E]
B
6. The public prosecutor may have exhibited more zeal. But that
conld not be characterised as unfair. May be it would have been proper

-
and probably .better to inform the Single Judge about the earlier order
passed by the Division Bench. But assuming the public prosecutor did not
inform and remained content with its disclosure in the body of the petition C
she could not be held to have acted dishonestly. [309F]

+ 7. A Judge of the High Court may have unchallenged and unfettered
power to direct the office to list a case· before him. But that by itself
restricts the exerci•e of power and calls for strict judicial discipline. If the
Judge in the instant case, would have avoided sending for and deciding the D
petition, which as pointed out by the senior counsel for the State bad
become infrnctuous, it would have been more in keeping with judicial
culture. [309H, 310A.Bl

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal E
No.275 of 1993.

From the Judgment and Order dated 14.10.1991 of the Bombay High

- Co.urt in CrL W.P. No. 180 of 1991.

Altaf Abmed, Addi. Solicitor Genera~ B.R. Hanc4, Mrs. Manjula F
Rao, S.M. Jadhav, AS. Bhasme and A.M. Khanwilkar for the Appellant.

Dr. B. Subh& Rao Respondent-in-person.

V.M. Tarkunde, AM. Khanwilkar and AK. Panda for the Inter-
venor. G
The Judgment of the Court was delivered by

R.M. SAIL\I, J, Strictures of 'sharp practice', suppression of facts,
obtaining orders by playing fraud upon the court against State b~ Mr.
Justice Saldanha of the Bombay High Court, while deciding Criminal H
304 ' SUPREME COURT REPORTS [1993] 2 S.C.R.

A Miscellaneous Petition filed by the opposite party, accused of leaking
official secrets and violating provisions of the Atomic Energy Act, 1962 and
awarding Rs.25,000 as compensation, for consultancy loss, suffered by him,
due to ex-parte order obtained by the State against order of the trial Judge
permitting the opposite party to go abroad, compelled the State to file this
appeal and assail the order not only for legal infirmities but factual inac-
B curacies.

Reasons to quote the learned Judge which, 'compelled the con-
secience of court to pass' the impugned order were, 'the unfortunate
proceedings that bristled (s) with ma/a fides'. Basis for these inferences
C was, the conclusion by the learned Judge, that the Sta.te, deliberately,
procured the interim order by another learned Judge by filing a separate
writ petition, when it knew that the main petition for quashing of the
proceedings was pending before the division bench (Puranik & Saldanha,
JJ.). The learned Jiidge felt, strongly, against the public prosecutor as she
D being aware of the proceedings before the Division Bench failed .in her
duty of apprising the learned Judge of correct facts.

Was this so? Did the State procure the order by concealing facts?
Was the public prosecutor guilty of violating professional ethics or her duty
as respondent officer of the court? What led to all this was an application
E filed by the opposite party, in the writ petition pending for quashing the y-
charge-sheet framed under (The Indian] Official Secrets Act, 1923 and the
Atomic Energy Act, 1962, for .release of his passport on which the division
bench of which Mr. Justice Saldanha was a member, passed the order on

F
13.2.91 that it may be presented before the trial Judge. On the very next
day. the Additional Sessions Judge, (hereinafter referred as 'ASJ') after
-
hearing the parties, directed .that the passport and identity card of the
opposite party be returned. B~;· further, permitted the opposite party to
leave India and travel abroad as per the itinerary during' the period from
17.2.91 to 22.2.91 on executing a personal bond of Rs.50,000. The State was,
obviously, disturbed bv this order as serious charges had been levelled
G against the opposite p;rty who had been arrested, earlier, just when he was
about to leave the country and 'hoard the plane, for leakage of official
secrets and whose bail had, even, been cancelled by this court, appeared
to be in danger of leaving the country again. Since the order was passed
on 14.2.91 and the opposite party was to fly on 17.2.91 and 16.2.91 was
H Staturday, the State challenged the correctness of the order passed by the
STATE v. DR. BUDHIKOTA [SAHAI, J.] 305

ASJ by way of a writ petition under Article 727 of the Constitution read A
(
with Section 482 of Criminal Procedure Code and the learned Judge, who
under the rules was entitled to hear such a petition, passed an ex-parte
order on 15.2.91 staying that part of the order which permitted the opposite
party to leave the country and directed the application to be listed for
further orders on 18.2.91. On coming to know of this order, in the evening, B
the opposite party approached the Division Bench where the main petition
was pending on 16th February, which after making an observation that tbe
public prosecutor ought to have brought it to the notice of the learned
single Judge that the main matter was pending before the Division Bench

- and the trial Judge had passed the order in pursuance of the direction
issued by the Division Bench,.. directed that the matter, being urgent, it C
should be placed before the same learned single Judge. Consequently
parties appeared before the learned Judge on 16th February who, after

+ hearing, confirmed the interim order passed, a day earlier.

With confirmation of interim order the proceedings which had com- D
menced on the application filed by the opposite party to leave the country
came to an end. But the writ petition in which die interim order was passed
remained pending. And when the revision lilcd by the State, directed
against the order acquitting the accused, was taken up for hearing by Mr.
Justice Saldanha, and observations were made, during course of judgment
dictated in open court from 5th to 12th ()ctober 1991 against the public E
prosecutot and the State, the opposite party appears to have made a
mention on 10th October that the writ petition filed by the State against
the order of the trial Judge releasing his passport and perinitting him to

- travel abroad may be summoned and disposed of. The request was ac-
cepted and on direction of the learned Judge the office listed the case
before him on 11th October. When the petition was taken up, on 11th
F

October,. and the public prosecutor was asked if she had any objection to
hearing It was stated by her that it did not survive. But the learned Judge
after completio11 of judgment in criminal revision on Uth October, appears
' u
to have, taken up the Writ petition. It was pointed out by the learned senior
counsel for the State that since the criminal revision fili>d by the State G
againsi the order acquitting the accused has been dimissed, the writ
petition had become infructuous and orders may be passed accordingly.
·~.
Yet ,die foarned Judge passed the impugned order .. What weighed
with the· learned Judge to infer ma/a fides against the State Was that the H
-+
306 SUPREME COURT REPORTS [1993] 2 S.C.R.

A order dated 14.2.91 having been passed in open court in presence of the
opposite party and coun.sel for the State, permitting the opposite party to
leave the country on 17.2.91, the opposite party, genuinely expected the
according to the learned Judge, rightly, that any further application which ·
the State would make could only be addressed to the bench, namely, the
B bench of Puranik & Saldanha, JJ., before whom the petition was pending,
therefore, the opposite party, justifiably, waited and watched in the bench,
whole.day for moving of any application but the State instead of moving
any such application filed a fresh writ petition and obtained an ex-parte
order, the information of which was given to opposite party in the evening.
The learned Judge was of opinion that it was deliberate as it was known
C to the public. prosecutor that the bench on 13.2.91 after scrutinising the
papers was of opinion that it was a genuine case in which the ·Passport
should be released and the opposite party should be permitted to travel
abroad but due to paucity of time the bench instead of passing the order
directed the opposite party to approach the trial Judge. The learned Judge
+
D further held that even though the public prosecutor and the Instpector of
Police knew these facts and that the opposite party was to fly on 17.2.91
yet the notice was obtained from the learned Judge returnable on 18.2.91
by which time the delegation from Reliance Industries of which the accused
was to be a member was to have left the country. Since the effect of the
interim order and the fixing of the petition on 18.2.91 nullified the opposite
E party's going to United States of America, the court felt that the order was
obtained not only unfairly, but that it constituted a sharp practice. The
motive of the public prosecutor and the State was further attempte~ to be ,
shown to be dishonest and motivated as the averments in the petition on
which the interim order was obtained were false to their knowledge. The
F falsity found was that the State had deliberately tried to mislead the court
by alleging that the trial was fixed for hearing on 18.2.91 and the same had
been adjourned to 24.2.91. The court found that the learned single Judge
was misled in passing the order as was clear from ground number six which
was to the effect that the trial being fixed for 18. 2.91 the trial Judge was
not justified in issuing the orders in favour of opposite party. The learned t
.
G Judge also felt aggrieved by the conduct of the public prosecutor in not
informing the learned single Judge that the main writ petition was already
.

listed for hearing before the division bench and that the direction to the
·ASJ to consider the application for return of passport had been issued by
the bench. The learned single Judge was not satisfied with explanation of
H the State that a petition nnder Article 227 of the Constitution read with
STATE v. DR. BUDHIKOTA [SAHA!, J.] 307

Section 482 of Criminal Procedure Code being maintainable before the A
learned single Judge under the High Court rules it had no option but to
proceed in accordance with law. The learned single Judge pointed out that
if the State would have pointed out to the Registry the correct facts then
the case could not have been listed before the learned single Judge.

That any party aggrieved by an order passed by a Court is entitled B
to approach the higher court cannot be disputed nor can it be disputed
that a petition under Article 227 of the Constitution read with Section 482
of the Criminal Procedure Code against the order of trial Judge was
maintainable and under rules of the court it could be listed before the
learned single Judge only. The State, therefore, in filing the petition against C
the order of the sessions Judge did not commit any illegality or any
impropriety. A copy of the writ petition, has been annexed to this special
leave petition which, does not show any disclosure of incorrect facts or any
attempt to mislead the court. Even the learned single Judge did not fmd
that the trial was not fixed for 18.2.91. Disclosing correct facts and then D
obtairiing order in favour is not same as procurring an order on incorrect
facts. Former is legitimate being part of advocacy latter is reprehensible
and against profession. But if the State persuaded the court to stay the
operation of the order passed by the trial Judge while mentioning the
details about the pendency-nf the earlier petition before the division bench
and issuing of directions to the sessions Judge to decide the application for E
release of passport etc. it is difficult to imagine how any inference of
obtaining order on incorrect facts could be drawn. During arguments the
opposite party attempted to highlight averments in paragraph six of the

- writ petition to the effect that the Division Bench had dismissed the
application of the opposite party when no such order was passed. The
sentence, in fact, reads as under:
F

--
----"'- 'The application was dismissed and directed the respon-
dent to move trial court and further directed the trial court
to consider the same in accordance with law'.
G
True, the application was not dismissed. But the sentence had to be read
in its entirety. No court could be misled from the use of the word dismissed
as the directions issued by the court were mentioned correctly. The in-
ference drawn by court and the finding recorded by it of obtaining the
order by 'suppression of facts and making positivelx false statements' is H
308 SUPREME COURT REPORTS [1993] 2 S.C.R.

A factually incorrect and legally unsound. The grief of the opposite party in
missing an opportunity of going to the United States and the grievance
against functionaries of the State, namely, public prosecutor and prosecut-
ing Inspector can be appreciated. We can, also, y;_sualise the vehemence
and eloquence of the opposite party, of which he is capable of, as appeared
from his submission when he appeared in person in this court, but what
B
has baffled us that the learned Judge was persuaded to record the finding
of suppression of facts on such weak and insufficient material.

Mala-ftdes violating the proceedings may be legal or factual. Former
arises as a matter of law where a public functionary acts deliberately in
C defiance of law without any malicious intention or improper motive
whereas the latter is actuated by extraneous considerations. But neither can
be assumed or readily inferred. It requires strong evidence and unimpeach-
able proof. Neither the order passed by the learned single Judge granting
ex-parte order of stay preventing opposite party from going abroad was
D against provisions of law nor was the State guilty of acting ma/a fides in
approaching the learned single Judge by way of writ petition. The order of
the trial Judge could not be challenged before the Devision Bench. Under
the rules of the court, the correctness of, the order could be assailed only
in the manner it was done by the State. Any party aggrieved by an order
is entitled to challenge it in a court of law. Such action is neither express
E malice nor malice in law.

The opposite party was charged with very serious offence. He was
arrested when he was about to leave the country. The State was possessed
of material that he had, even, applied for matrimonial alliance in response
p to an advertisement issued from New York. The order of the trial Judge,
therefore, permitting opposite party to leave the country without trial must
have created a flutter in the department. It was by all standard a sensational
and a sensitive case. The public prosecutor and the prosecuting Inspector
who were entrusted with responsibility to prosecute the opposite party
must have felt worked up by the order permitting the opposite party to
G leave the country. Decision must have been taken to wev~nt the opposite
party by approaching the High Court by way of a writ petition instead of
approaching the Division Bench. Assuming that the Slate took recourse to
this method, as it might have been apprehensive that it would not get any
order from the division bench, the State could not be accused of mala-fides
H so long it proceeded in accordance with law. Apart from that _once it was
STATE v. DR. BUDHIKOTA [SARAI, J.] 309
•
brought to the notice of the division bench that the State had procured on A·
ex-parte order from the learned Judge who was requested by the division
bench to treat the matter urgent and hear parties and the application was
heard on 16th February and the learned Judge refused to vacate the interim
order and confirmed it the entire basis of ma/a-fide stood demolised. The
learned Judge was not justified in blaming the State for getting the notice
B
returnable on 18th February. That was order of the court. In any case the
opposite party having appeared on 16th yet the learned Judge having
refused to modify his order it was too much to hold the State or public
prosecutor responsible for it.

Sharp practice is not a court language. We are sorry to say so. Facts C
did not justify it. Legal propriety does not countenance use of such expres-
sion favourably. The learned Judge, to our discomfort, used very harsh
language without there being any occasion for it. A State counsel with all
the aura of office suffers dual handicap of being looked upon by the other
side as the necessary devil and the courts too at times, find it easier to D
frown upon him. The moral responsibility of a State counse~ to place the
facts correctly, honesty and fairly before the court, having access to State
records, coupled with his duty to secure an order it favour of his client
requires him to discharge his duty responsibly and sensibly. Even so if a
State lawyer who owes a special duty and is charged with higher standard
of conduct in his zeal or due to pressure, not uncommon in the present E
day, adopts a partisan approach that by itself is not sufficient to warrant a
finding of unfairaness or resorting to sharp practice. In this case too not
more than this appears to have happened; May be the public prosecutor

- may have exhibited more zeal. But that could not be characterised as
unfair. May be it would have been proper and probably better to inform F
the learned single Judge about the earlier order passed by the division
bench. But assuming the public prosecutor did not inform and remained
content with its disclosure in the body of the petition she could not be held
to have acted dishonestly.

We ·are constrained to observe our unhappiness on the manner in G
which the writ petition was summoned by Mr. Justice Sald3nba from the
office, heard and decided. As stated earlier the writ petition was directed
by the leaned Judge to be listed before him, on a mention made by the
opposite party in course of dictation of judgment in criminal revision
wherein he had made observations against the pnblic prosecutor. A Judge H

•
310 SUPREME COURT REPORTS (1993] 2 S.C.R.

A of the High Court may have unchallenged and unfettered power to direct
the office to list a case before him. But that by i!!;elf restricts the exercise
of power and calls for strict judicial discipline. We do not intend to make
any comment but we are of opinioo thatiif the learned Judge would have
avoided sending for and deciding the petition, which as pointed out by the
B learned senior counsel for the State had become infructuous, it would have
been more in keeping with judicial culture.

For reasons stated above by us this appeal succeeds and is allowed.
The order dated 28-10-91 passed in civil miscellaneous writ petition is set
aside. It shall stand dismissed as infructuous. The Intervention Application '
C No.943 of 1992 of the Public Prosecutor is allowed. We make it clear that
all the observations and remarks made by the learned Judge against the
State and Public Prosecutor shall stand expugned.

N.V.K. Appeal allowed.

•
.;.":-··--